In Australia, probation period are a common aspect of starting employment at a new company. This period protects businesses from employees who may not be a good fit for the company’s culture or role requirements. In this guide, we will delve into the legal and practical aspects of probation period and how it works within Australia’s fair work environment.
What Is a Probation Period?
Definition of a Probation Period
A probation period is a 3 to 6-month timeframe that is implemented at the start of an employment relationship whereby during the probationary period, employers assess performance, conduct and cultural fit in line with Fair Work Act 2009 requirements. While probationary employees receive most of the same entitlements under the National Employment Standards (NES), protection from unfair dismissal depends on whether the employee has completed the minimum employment period (6 months, or 12 months for most SMBs). How long the period of probation lasts depends on the role and employee preferences.
Purpose of a Probation Period
As with every new relationship. It is difficult to assess the compatibility of it without allowing some time to pass. The probation period allows employers to evaluate an employee’s performance, reliability and alignment with the company culture and role, helping them deduce the risks associated with hiring. It also allows employees to assess whether the role and work environment are aligned with their skills and expectations.
Legal Aspects of the Probation Period in Australia
Employment Law and Probation Periods
Under Australian employment law, probation periods are contractual arrangements and are not specifically defined under the Fair Work Act 2009. While it is up to the employer to dictate the length of the probation and the terms surrounding the probation period, there are still employment laws and employee protection that must be followed during this time. For example, employees are entitled to fair wages, leave entitlements and safe working conditions.
Notice Periods During Probation
Notice periods during probation must comply with the employment contract and minimum notice obligations under the National Employment Standards (NES), unless termination is for serious misconduct. For instance, many employers may enforce a week’s notice of termination. Setting clear guidelines in the initial employment contract helps to avoid misunderstandings.
Minimum Notice Requirements Still Apply
Although probation clauses often specify shorter notice periods (for example, one week), employers must ensure they comply with the National Employment Standards (NES) and any applicable award or enterprise agreement.
Generally, employees who have worked less than one year are entitled to at least one week’s notice, or payment in lieu of notice.
If employment ends during probation, employers must also ensure:
- All outstanding wages are paid
- Any accrued but unused annual leave is paid out
- Final pay is processed in accordance with applicable laws
Providing written notice and confirming final entitlements helps reduce risk and ensures compliance.
Can a Probation Period be Extended?
Employers may extend the initial probationary period if an employer is showing potential but needs more time to meet the criteria of the role. This must be properly communicated and documented along with a specific end date for the extended period.
How to Structure an Effective Probation Period
Setting Clear Expectations
Setting clear expectations from the beginning of the employment contract will ensure a smooth transition in the employment relationship. Employers must outline clear goals and expectations to ensure new hires understand their responsibilities and what they are working towards.
Ongoing Feedback and Communication
Having regular check-ins on performance throughout the probation period helps keep the new hire on track. It allows new employees to raise any concerns and identify their strengths and areas for concern. Employers should schedule regular feedback sessions and provide constructive feedback to guide the new hire’s development.
Assessing Employee Performance During Probation
Employers can evaluate performance by punctuality, adaptability and alignment with company culture and values. A structured review at the end of the probationary period can help evaluate performance or conduct during this time.
Suggested Probation Review Timeline
Having a structured approach reduces risk and improves employee performance outcomes. A simple framework may include:
Week 1:
- Confirm role expectations, KPIs and training plan
- Provide written position description
Week 4–6:
- Conduct initial performance check-in
- Identify any early performance gaps
- Provide clear written feedback
Midpoint Review (for 6-month probation):
- Formal documented review
- Outline areas requiring improvement (if any)
- Provide support or additional training
Final Review (2–4 weeks before probation ends):
- Confirm outcome (pass, extend, or terminate)
- Document decision
- Provide written confirmation
Keeping written records of each meeting and having the employee acknowledge feedback can be valuable if issues arise later.
Probation Period Rights and Obligations
Employee Rights During Probation
During the propagation period, employees in Australia retain most of their rights as regular employees. While there are some differences such as eligibility for bonuses or certain perks, employees are entitled to:
- Fair wages and payment on time.
- Leave entitlements such as personal and annual leave, per the National Employment Standards (NES).
- A safe and healthy workplace with access to necessary equipment and support.
A common misconception is that probationary employees have no rights regarding termination or fair treatment. However, they are still protected against unfair practices and may seek recourse if they feel they have been treated unlawfully. While employers may terminate employment during probation in accordance with the contract, employees remain protected from unlawful termination, discrimination and general protections claims under the Fair Work Act. The primary difference is employers are able to terminate the contract within the contracted agreed period; in some cases is as little notice as a week.
Probation Does Not Remove General Protections
While employees on probation may not yet qualify for unfair dismissal (if they haven’t completed the minimum employment period), they are still protected under the general protections provisions of the Fair Work Act. This means an employer must not terminate employment for a prohibited reason, including if an employee:
- Raises concerns about pay or entitlements
- Makes a complaint about bullying or harassment
- Raises a workplace health and safety issue
- Exercises a workplace right
- Takes personal leave
- Is pregnant or discriminated against due to a protected attribute
Even during probation, termination must be lawful and not motivated by discriminatory or retaliatory reasons. Employers should ensure decisions are evidence-based and properly documented.
Employer Obligations During Probation
Employers are required to create a supportive and professional experience during probation, setting up the employee for success. This includes:
- Providing proper training and resources needed for the role.
- Offering regular feedback and support to help the employee meet their goals.
- Ensuring fair and lawful termination procedures, including proper notice periods and adherence to anti-discrimination laws.
What Happens After the Probation Period?
End of Probation: Outcomes and Next Steps
The end of probation generally comes with a review to formally confirm their position. Alternatively, if an employee feels that more time is needed, the probation period may be extended with clearly outlined expectations and deadlines for the period of probation. Lastly, if the employee’s performance has not improved or met performance standards, the employer may terminate the employment.
For smooth transitions, employers can provide a confirmation letter for the successful completion of a termination notice if employment will not continue.
Addressing Performance Issues After Probation
If the employee has not met expectations after the probation period or if performance issues still persist, employers can:
- Conduct regular reviews and offer additional training or coaching.
- Set clear, measurable performance goals and offer targeted support.
- Hold a structured conversation to address concerns constructively and help employees succeed in their roles.
A probation period is important for businesses because it allows for an initial evaluation of an employee’s fit and performance. After the probation period, it becomes more challenging to terminate the contract, as employees gain additional protections against unfair dismissal.
Common Questions about Probation Periods
Can I resign during my probation period?
Yes, you can resign during your probation period. The required notice period is dependent on your contract so it is important to reference it if you are considering termination.
Does being on probation affect my pay?
Typically, being on probation does not impact your pay. Employees on probation are generally entitled to the same salary and benefits as outlined in their employment contract. Any change in pay structure or benefits should be specified in the contract and comply with the National Employment Standards (NES).
How do I know if I pass my probation?
At the end of the probationary period, your employer should notify you formally and give you a confirmation of your employment. If you don’t receive feedback it is good to reach out to your manager or HR to confirm.
Is a probation period mandatory in Australia?
No, probation is not mandatory in Australia. However, it is a common practice used by employers to assess new hires. The use of a probation period should be agreed upon in the employment contract, allowing both the employer and employee to understand their rights and obligations.
What is the difference between a probation period and the minimum employment period under the Fair Work Act 2009?
While both relate to the start of employment, they serve different purposes. A probation period is a company-specific assessment phase, typically 3 to 6 months. The minimum employment period, as defined by Australian law, is the time an employee must work to gain protection against unfair dismissal (typically 6 months or 12 months for small businesses). Probation periods may be shorter than or align with the minimum employment period, but they’re not the same.
Is a probation period needed for a new role in the same company?
A probation period for a new role in the same company is not required by law but may be set by company policy. If an employee takes on a significantly different position or department, employers might use a probation period as a formal adjustment period to ensure that the role is a good fit for both parties. This should be outlined clearly in the new role’s terms.
Can an employee make a general protection claim during probation?
Yes. Employees are protected from adverse action regardless of length of service.
Does notice apply during probation?
Yes. Minimum notice under the NES applies unless serious misconduct occurs.
Is probation mandatory under Australian law?
No. Probation is contractual, not statutory.
Tips for a Successful Probation Period
Advice for Employers
- Set clear expectations from the start, outlining goals and performance standards.
- Maintain open communication with new hires and provide constructive feedback.
- Create a welcoming environment by fostering a sense of belonging and support.
Advice for Employees
- Stay proactive by seeking feedback regularly and addressing any challenges.
- Focus on growth and use the probation period to learn about your role and workplace culture.
- Keep an open mind and aim to make a positive impression with a strong work ethic and commitment.
Important Time Limits for Claims
If an employee believes their employment was terminated unlawfully, they generally have 21 days from the date of dismissal to lodge a claim with the Fair Work Commission.
While employees who have not completed the minimum employment period cannot usually bring an unfair dismissal claim, they may still pursue:
- General protections (adverse action) claims
- Discrimination complaints
This highlights the importance of ensuring probation decisions are well-documented and legally sound.
Making the Most of the Probation Period for Lasting Success
Probation periods offer companies and employees to gauge if they are a good fit for the role and company culture. It gives employers the opportunity to assess the employee and ensure the employee has met their role expectations. Having regular performance checkins throughout the probation period and documented expectations in the employment contract ensures smooth transitions. At E.L Blue, we act as a single source of support for HR outsourcing looking after all aspects of workforce management. Whether you are after recruitment support or workforce planning, our team of experts are here to support you. Get in touch with us today.
Helpful Resources
Employers may wish to refer to guidance and templates provided by the Fair Work Ombudsman, including:
Using structured documentation supports transparency and compliance.